law

  • What happens when four black Baltimore drug dealers on trial for murder and conspiracy use an unusual legal defense manufactured by white supremacists decades ago? That's what "Too Weird for The Wire", a longish but fascinating article, is about.
    In [2004], nearly twenty defendants in other Baltimore cases had begun adopting what lawyers in the federal courthouse came to call “the flesh-and-blood defense.” The defense, such as it is, boils down to this: As officers of the court, all defense lawyers are really on the government’s side, having sworn an oath to uphold a vast, century-old conspiracy to conceal the fact that most aspects of the federal government are illegitimate, including the courts, which have no constitutional authority to bring people to trial. The defendants also believed that a legal distinction could be drawn between their name as written on their indictment and their true identity as a “flesh and blood man.”
    (28) #
    7/17/2008
  • Woohoo!:
    The California Supreme Court has overturned a ban on gay marriage, paving the way for California to become the second state where gay and lesbian residents can marry.
    I was in Massachusetts when it was overturned there, and am now 10 miles away from the second state. Let's hope that California voters don't pass a constitutional ban in November. (4) #
    5/15/2008
  • Remember that death penalty stay the Nevada Supreme Court ordered last October pending the U.S. Supreme Court's lethal injection decision? Back then I wrote:
    It was a tricky situation, because Castillo himself refused to file any appeals for his execution and was willing to die last night. The ACLU of Nevada decided to go forward anyway...
    Tricky no longer -- Castillo has decided to join the legal challenge. (4) #
    5/7/2008
  • A Reno man has filed a lawsuit to keep Hillary Clinton off the Nevada ballot (assuming she's the nominee), because he believes the U.S. Constitution prohibits women from the presidency due to its consistent use of the male pronoun.
    Wallace, who describes himself as a civil rights fighter, said his lawsuit, filed Friday in Washoe District Court against the secretary of state, is meant to force changes so that "women can legally be U.S. president."
    Despite his "good intentions," the article cites some clearly skeptical legal scholars. But my favorite part of the article is this:
    He is a retired engineer and a Democrat, who once ran for the Sparks City Council. During his campaign, he advocated that a snowshed be built over Interstate 80 from Donner Pass to Kingvale, Calif.
    That would be awesome. (6) #
    4/11/2008
  • The creators (David Simon, Ed Burns) and the high-profile writers (Dennis Lehane, George Pelecanos, Richard Price) of HBO's The Wire have written a pledge in Time to practice jury nullification when it comes to non-violent drug offenses:
    If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.
    (thx, luddite robot) (18) #
    3/6/2008
  • Richard Abowitz summarizes the ongoing battle in Las Vegas between businesses/local judges and the ACLU/1st amendment. The most recent case involves a woman being thrown in jail for protesting a jewelry business on the sidewalk in front of the business. (0) #
    2/6/2008
  • Check out this bill in Massachusetts enacting the repeal of several antiquated blue laws, mostly from Chapter 272 of the General Laws of Massachusetts. The most fun laws are in sections 63-69, which carefully distinguish "Tramps," "Vagrants," and "Vagabonds." (thx, jon may) (2) #
    1/31/2008
  • A semi-puff piece on the different experiences Hillary Clinton and Barack Obama had in Yale and Harvard's law schools, respectively. I say semi-puff because it is somewhat relevant to understand the choices each made within and coming out of two of the most privileged institutions in the United States. (0) #
    12/4/2007
  • Supreme Court Justice Antonin Scalia is teaming up with legal writing expert Bryan Garner to write a book on "the art of persuading judges." I own the excellent Garner's Modern American Usage (based on David Foster Wallace's rave review), and have admired the prose (but usually not the arguments) of Scalia's decisions -- so although I have no professional need for this book, I still think it will be an interesting read. (5) #
    11/27/2007
  • Speaking of the death penalty, did you hear about the judge in Texas who disallowed a death penalty appeal because it came in 20 minutes late? This happened on September 25th, the day the U.S. Supreme Court decided to take the lethal injection case, and death row inmate Michael Richard's lawyers informed the court that they were throwing an appeal together. But a crashed computer prevented them from getting it in on time. Several judges were willing to stay late and receive the appeal, but Chief Justice Sharon Keller decided to keep strict 9-5 hours and disregarded the appeal. Richards was executed that night, and now newspapers in Texas are calling for Keller's removal from the court. (14) #
    10/17/2007

Nevada Supreme Court stays Castillo execution

Last night, 90 minutes before the scheduled time, the Nevada Supreme Court stayed the execution of convicted murderer William Castillo, pending a fuller review of the issues brought to the court by the ACLU of Nevada in an emergency hearing yesterday afternoon.

It was a tricky situation, because Castillo himself refused to file any appeals for his execution and was willing to die last night. The ACLU of Nevada decided to go forward anyway, with a two-pronged argument:

1) A lethal injection execution should not take place because the U.S. Supreme Court took a case several weeks ago to look into whether the three chemical cocktail used in such executions constitutes "cruel and unusual punishment," as interpreted from the 8th Amendment of the constitution. There is no emergency reason why the execution cannot wait until that issue has been resolved by the highest court.

2) The second chemical used in lethal injection serves no purpose but to mask the effects (by muscle paralysis) of the third and lethal chemical. This violates the 1st Amendment right of the press to witness the full effects of lethal injection, especially in a time when its potential to be "cruel and unusual punishment" is in review. Courts in the past have prohibited such things as hiding executions with curtains, etc.

I think the arguments are sound, but the trickiness mostly lies in whether or not the ACLU of Nevada has legal standing to bring the issue to the court. Such determinations are beyond my legal understanding, but are what the court is hoping to work out during the upcoming briefings and further arguments. I'm hoping that Nevada continues to follow the examples of other states in not executing anyone until at least the Supreme Court has resolved their issue. (Although I personally would prefer that the death penalty be banned altogether.)

Lastly, I should mention that Flea was the one who argued this case for the ACLU of Nevada (along with her colleague Allen, who argued the 1st Amendment portion remotely from Las Vegas), and I went down with her to Carson City yesterday to watch. She did a tremendous job, especially considering that she's been licensed as a lawyer for less than a year, and more than held her own in front of all seven Nevada Supreme Court justices and the representatives of the state on the opposing side.

Rarely does a legal motion such as this get written, filed, argued, and decided within several days, and I was lucky to be a witness. Congratulations go to the entire ACLU of Nevada, and their allies, for making this happen. (And for having an emergency cert prepared for the U.S. Supreme Court ready to go in case of a loss.) The public has a right to ensure that its government is handling this grave and irreversible duty in an ethical, responsible, and constitutional manner.

Tue, 10/16/2007 - 12:58pm
  • When I read the CNN story headlined "Misplaced 'not' in Arkansas law allows babies to marry" the other day, I knew something was fishy. Language Log comes to the rescue, criticizing the media for caring more about bad language than bad thinking.
    It's hardly credible that moving the negation somewhere else in the statute would succeed in producing a piece of law that could conceivably have represented the will of the people.
    (0) #
    10/13/2007

Reno and flag codes

Having just moved to Reno, Nevada two days ago, I woke up today to find an email from my brother linking to this news story about a "Flag of Mexico Flown Illegally Over Reno Business," which linked to this part of the Federal flag code. The story has caught on nationally, and has since been reported by the Drudgereport and CNN. (Although CNN is more interested in the fact that a veteran was caught on video tearing down the flag with a large knife.)

My initial reaction to the headlines was that there was no way that Federal code legally compels private residences and businesses to display their flags in a particular way, especially since the First Amendment gives Americans the freedom to burn the flag if they so wish. It turns out that I was right: courts have ruled that the laws here are merely advisory:

Federal flag code is not intended to proscribe behavior but is fashioned as expression of prevalent custom and usage regarding display of American flag. Lapolla v. Dullaghan, 1970, 311 N.Y.S.2d 435, 63 Misc.2d 157.

Still, the damage has already been done, and there's no telling how many people now believe that their First Amendment rights don't include flying flags in the manner of their choosing. Indeed, when I dropped off my rental truck this morning, the clerk and I got in an argument over this story, with him insisting that it's illegal (he saw it on Anderson Cooper last night), and that I should leave the country if I believed otherwise.

I know through my sources that the local news agencies are now being contacted about their error in reporting the story -- I will keep you updated about any retractions.

Update: KRNV has posted the ACLU of Nevada's press release regarding their storey.

Later Update: It's beginning to get out there that disregarding the Federal flag code is not illegal. The Reno police say as much in this Reno-Gazette Journal article. So far as I know, neither KRNV nor the Drudgereport has retracted the original story.

Wed, 10/03/2007 - 10:42am
  • Following up a post from two weeks ago from the Democratic side, here's a speculative shortlist of who would might be nominated next for the Supreme Court if a Republican candidate wins the presidency in 2008. (1) #
    7/23/2007
  • An interesting speculative shortlist of who would might be nominated next for the Supreme Court if a Democratic candidate wins the presidency in 2008. Massachusetts governor Deval Patrick, Harvard Law School Dean Elena Kagan, and even Barack Obama makes the list. (6) #
    7/12/2007
  • An interesting brief essay on how the general composition of the Supreme Court has changed over the past 100 years. The experiences and backgrounds of past judges were more varied and more likely to have legislative experience.
    There undoubtedly are many reasons for this phenomenon – a post-Bork confirmation process that favors nominees with no “paper trail”; interest groups in both parties that demand nominees likely to be “dependable” votes in certain kinds of cases; and the widespread impression – fostered by the ascendant legal ideology – that judging is a technical exercise, for which the essential credential is expertise in the legal academy, as a judge, or the equivalent.
    (0) #
    6/29/2007
  • A cynical yet honest 5-minute crash course in American constitutional law, by Duke law professor Walter Dellinger.
    [B]road constitutional phrases are different from sports rules, so a judge would be like an umpire only if the game—instead of having a strike zone and a set number of balls, strikes, and outs—provided instead that "each batter shall have a fair chance to hit the ball" and "each team shall have a reasonably equal opportunity to score runs."
    (6) #
    6/22/2007
  • Nothing scares me more than Supreme Court Justice Scalia using the example of 24's Jack Bauer to support his positions:
    The conservative jurist stuck up for Agent Bauer, arguing that fictional or not, federal agents require latitude in times of great crisis. "Jack Bauer saved Los Angeles. ... He saved hundreds of thousands of lives," Judge Scalia said. "Are you going to convict Jack Bauer?" Judge Scalia challenged his fellow judges.
    Isn't the presidential pardon a sufficient escape hatch for these one in a billion ticking time bomb hypotheticals? (6) #
    6/19/2007
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